AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 9 August 2018

R v Ceissman

[2018] NSWSC 1244

Public order & justice offences
BAIL BREACH OF ISO TERRORISM HIGH RISK OFFENDER BAIL GRANTED

Citation: R v Ceissman [2018] NSWSC 1244
Court: Supreme Court of New South Wales
Date: 9 August 2018
Judge(s): Rothman J

Background

The applicant was subject to an Interim Supervision Order (ISO) made under the Terrorism (High Risk Offenders) Act 2017, following allegations that he had been radicalised while serving a prison sentence for a non-terrorism offence. The ISO imposed a range of conduct restrictions, including requirements around declared communication applications and internet use.

The applicant was charged with eight offences: seven counts of breaching the ISO by using undeclared communication applications (including Skype, WhatsApp, Facebook, Telegram, Fuckbook, and Snapchat) and one count of resisting arrest. He had been held on remand for approximately two months at the time of the bail application.

The bail application was heard alongside a related application by the State for a permanent Extended Supervision Order (ESO), dealt with separately in State of NSW v Ceissman (No 2) [2018] NSWSC 1237.

Legal Issues

  • Whether the applicant had shown cause under section 16A of the Bail Act 2013 why his continued detention was not justified, given that seven of the eight charges were "show-cause" offences
  • Whether, having cleared the show-cause threshold, the bail concerns set out in sections 17 and 18 of the Bail Act 2013 (particularly risk to community safety) could be sufficiently addressed by conditions

Decision

Issue 1: Show-Cause Requirement

Seven of the eight charges (all except resist arrest) were show-cause offences under section 16A of the Bail Act 2013, meaning the applicant bore the burden of demonstrating that his detention was not justified (at [4]). Rothman J identified three considerations that together satisfied that burden: the applicant had already served approximately two months on remand; the charges carried a defence based on the construction of the ISO, meaning guilt was not uncontroversial; and even on a conviction and full-time custodial sentence, the likely term would not be lengthy (at [10]-[13]).

Issue 2: Bail Concerns and Community Safety

The central concern was the risk to community safety. Rothman J observed that the State's concurrent pursuit of an ESO carried an implicit concession: the State's own position was that conditions could sufficiently ameliorate any unacceptable risk posed by the applicant, as that is the very premise on which a supervision order is sought (at [13]). The Crown's opposition to bail was characterised as an indirect means of achieving continued detention in circumstances where the State had itself asserted that community safety could be managed through conditions.

Issue 3: Additional Considerations

Rothman J noted the ongoing risk that continued incarceration would expose the applicant to further radicalisation in prison, given that radicalisation during a prior sentence was the foundation of the entire ESO application (at [8]). His Honour also took into account the applicant's Aboriginal descent as a factor expressly required by section 18 of the Bail Act 2013, noting the disproportionately high rate of Aboriginal incarceration, particularly on remand (at [12]).

Orders Made

  • The applicant is to enter into an agreement to observe conduct requirements while at liberty on bail
  • The applicant is to report by telephone to Redfern Police Station each Monday, Wednesday, and Friday between 8am and 6pm
  • The applicant is to reside with his father (at a redacted address) or, alternatively, his mother (at a redacted address)
  • The applicant is to be of good behaviour
  • The applicant is not to go within 500 metres of any international points of departure
  • The applicant is not to apply for a passport or any travel document
  • The applicant is to abide by the conditions of the ISO granted on 13 April 2018, whether or not an ISO remains in force during the bail period
  • Bail may be entered before any person authorised under the Bail Act 2013
  • Bail is automatically revoked on breach of any condition, and the applicant may thereupon be arrested by any police officer

Key Takeaways

  • A State application for an Extended Supervision Order carries an implicit concession that community risk can be sufficiently managed through conditions; Rothman J held that this concession cut against the Crown's simultaneous opposition to bail on community safety grounds (at [13]).

  • Under section 16A of the Bail Act 2013, an applicant charged with show-cause offences may satisfy the threshold through a combination of time already spent on remand, genuine legal defences in contest, and the likely brevity of any eventual custodial sentence (at [10]-[13]).

  • Where an applicant's alleged radicalisation occurred during prior imprisonment, continued remand custody may perpetuate the very risk that supervision legislation is designed to address (at [8]).

  • Section 18 of the Bail Act 2013 expressly requires the court to take an applicant's Aboriginal descent into account as a bail consideration; Rothman J applied this requirement and noted the disproportionate representation of Aboriginal people in remand custody (at [12]).

  • A defence based on the proper construction of the order said to have been breached is a legitimate factor weighing against a finding that guilt is uncontroversial, even in the context of a show-cause bail determination (at [10]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013

Cases
- State of NSW v Ceissman [2018] NSWSC 508
- State of NSW v Ceissman (No 2) [2018] NSWSC 1237